The United Nations (UN) General Assembly (UNGA) adopted Resolution 77/400, requesting an advisory opinion of the International Court of Justice (ICJ) on the following questions relating to the Israeli occupation of Palestinian territory:
The UNGS resolution, asks the ICJ – pursuant to Article 65 of the Statute of the Court – to render its opinion on the legal consequences arising from Israel’s ongoing violation of the right of the Palestinian people to self-determination, its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of discriminatory legislation and measures.
The resolution further asks the Court how Israel’s policies and practices affect the legal status of the occupation and what are the legal consequences that arise for all States and the UN.
Israel, the US and 24 other members – including the United Kingdom and Germany – voted against the resolution, while France was among the 53 nations that abstained.
During the June 1967 war, Israel occupied all of historic Palestine and expelled 300,000 Palestinians from their homes. Israel also captured the Syrian Golan Heights in the north and the Egyptian Sinai Peninsula in the south. In 1978, Egypt and Israel signed a peace treaty which led to Israel withdrawing from Egyptian territory. The occupied Palestinian territories have been under Israeli military control since 1967. This makes it the longest occupation in modern history. The segmented territories include Gaza, the West Bank and East Jerusalem.
Significantly, this will be the second Advisory Opinion of the ICJ on the Occupied Palestinian Territory (OPT). The previous landmark Advisory Opinion in theLegal Consequences of the Construction of a Wall in the Occupied Palestinian Territory delivered on 9 July 2004, and tabled at the UN General Assembly on 8 December 2003, almost twenty years ago, found Israel had breached international obligations in constructing a Wall in the OPT, including the right of the Palestinian people to self-determination. Further, the obligations breached “included certain obligations erga omnes” incurring legal consequences as regards third States (para. 154-155). Prior to this, the Permanent Court of International Justice heard the contentious Case of the Mavrommatis Palestine Concessions in 1924, regarding the obligation of the de facto British administrator in Mandate Palestine to give effect to the previous electricity concessions concluded by the Ottoman government. A contentious case between the State of Palestine and the United States – Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America) – alleging that the relocation of the United States embassy to Jerusalem in May 2018 is in breach of the Vienna Convention on Diplomatic Relations, is pending.
Background of the case
In its report to the General Assembly, presented on 27 October, 2022 the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel (“The Commission”) found there are reasonable grounds to conclude that the Israeli occupation of Palestinian territory is now unlawful under international law owing to its permanence and to ongoing actions undertaken by Israel to annex parts of the land de facto and de jure.
The Commission recommended in their report that the General Assembly urgently request an advisory opinion from the International Court of Justice on the legal consequences of the continued refusal on the part of Israel to end its occupation of Palestinian Territory, including East Jerusalem, amounting to de facto annexation, of policies employed to achieve this, and of the refusal on the part of Israel to respect the right of the Palestinian people to self-determination, and on the obligations of third States and the UN to ensure respect for international law.
The Commission found in its first report that the continued occupation by Israel of Palestinian territory and discrimination against Palestinians were the key root causes of the recurrent tensions, instability and protraction of conflict in the region. The Commission’s second report to the General Assembly, based on its conclusion about the illegality of such an occupation, made the core recommendation for an advisory opinion from the International Court of Justice.
The Commission considers that a definitive clarification of the legal consequences of Israel’s refusal to end the occupation, and what the obligation of third parties to ensure respect for international law are, will be crucial to member States and the UN in considering what further measures should be adopted to ensure full compliance with international law.
